AG Holder to Address Al-Awlaki Targeted Killing

In late January, Daniel Klaidman reported that the administration was inclined to have Attorney General Holder give a major speech specifying additional details regarding the legal framework governing the use of lethal force against Anwar al-Awlaki. That time has now arrived. DOJ released a statement last week indicating that the AG will give a major address on national security at Northwestern Law (congrats to NW’s new dean–and my former colleague–Dan Rodriguez for landing this rather big fish) at 3:30 central time this Monday (the 5th). Once the text is available, we will certainly have a link to it, and commentary, here [at Lawfare].

In an earlier post, I explained why the credibility and sustainability of government policies on terrorism require government to be more forthright about the bases and explanations for its actions in this arena. In that post, I argued that the general dynamic of terrorism policy requires government to accept greater responsibility to explain its actions: “government actors need to recognize that these kinds of coercive and less familiar powers will understandably and predictably trigger concerns in many quarters about whether what is being done is justified; whether the actions rest on sound reasons; and whether the government is using these powers in appropriately restrained ways, including showing appropriate respect for the interests and values that these policies sometimes override (that is, are these values being compromised no more than necessary to accomplish the government’s legitimate aims). If government is going to use these powers, yet maintain credibility, it needs to “give back” to these understandable concerns by being more forthcoming than has typically been the case.

In this post, I want to explain why the political economy of public discourse on terrorism policy provides a further reason government must recognize the need to engage with the public. Government today is in a constant battle for its own credibility. In the context of terrorism policies, numerous non-governmental organizations now exist (unlike many decades ago) whose essential purpose is to reflect distrust of government; to monitor government; and to criticize and challenge government, in part, as these groups would see it, to keep government honest. Precisely because these groups have no direct political power, one of their main roles is to seek to mobilize public opinion, including through a strong media presence.

But few if any countervailing non-governmental organizations are devoted, of course, to the opposite perspective — that is, to defending government action as their raison d’etre. And modern journalistic culture, too, is based on the view that the media needs to turn a constantly skeptical or demanding eye on government policies, particularly coercive and less familiar ones. Partisan political actors, too, have their own incentives to seek to undermine the credibility of their opponents in power, including with arguments alleging lawless action. In this larger context, government simply has to be an active, full, constant participant in order to defend and justify the credibility of its actions, including their legal basis. An occasional government spokesperson offering a few words in explanation is far from sufficient.

I put a related argument this way, referring to an AP story by Kim Dozier reporting government discussions (denied by the Pentagon) that, following the formal exit of US combat forces from Afghanistan, elite units of SEALS, Rangers, JSOC forces, Afghan proxy forces, etc., might be tasked under CIA command, in the way that the attack on Bin Laden was carried out by SEALS but under operational command of the CIA:

The risk in not making this legal and policy architecture plainer to the public is that dark intimations of unaccountable forces undermine their legitimacy – not with the general public, which understands the reasons for secrecy, apparently, far better than many policy elites – in a world in which it is simply not possible to adopt the traditional CIA approach and blandly deny comment. It is impossible to square the obviously sanctioned leaks over many years and two administrations about the drone programs with self-serving insistence on deniability. The executive branch needs to develop much more nuanced categories of “truly covert,” “merely deniable,” “no comment on operations but of course we have a program,” and other categories.

The senior lawyers in the intelligence community might consider the peculiar gap between how the wider public sees their activities and how the executive branch itself sees them. The American public sees this as justified and legitimate, yes – but largely on the basis that crude necessity makes it legitimate and the “spies” exist to do what they must in darkness, so long as no one knows (much) about it. I know of no senior lawyer in the defense or intelligence community who sees this as justified or legitimate on the basis of “necessity” in that way – essentially “necessity” as based around exceptions to the rule of law. American leadership, lawyers and executives, see these activities as lawful, law-based, and law-limited – not the product of some special notion of “exception.”

As drone warfare, targeted killing, discrete and discriminating uses of force through advanced technology become the new normal, however, they will not remain in the shadows, neither will they be justified by some immediate exigency – they will become, and are rapidly becoming, the standard of a certain form of counterterrorism uses of force. It will not be unknown, and the traditional alternative to explaining the basis in law – secrecy and deniability – will not be available. The American public will want to know that there is a grounding in law, domestic and international, for these activities. Since the senior leadership and lawyers believe that there is such a basis, they should start articulating it now. Harold Koh has taken some important steps forward in that direction; likewise John Brennan and most recently DOD General Counsel Jeh Johnson. The civilian intelligence agencies likewise need to start publicly articulating the US government’s interpretation of the law that underlies these activities.

This is not a call to cave to the ACLU or other advocacy groups whose agendas will never be satisfied (the “if you give a mouse a cookie” problem). The NGO advocates fundamentally (i) oppose the CIA ever using force, (ii) oppose targeted killing outside of some legally novel concept of a “hot battlefield” as a violation of human rights law, (iii) do not accept that a process is governed by the rule of law unless an Article III judge has ruled on it (and depending on the outcome, not necessarily even then), rather than any process of accountability among the political branches alone, and (iv) have grave qualms about drones as technologies that enable the first two without putting US personnel at risk. Cave on anything beyond statements of legal principles and process, and the result will not be “institutional settlement,” but instead merely moving the goal posts; there isn’t really room for “dialogue,” let alone negotiation, but simply and necessarily one-sided articulation. That said, the articulation is important, because there is a problem when even a Kimberly Dozier story cannot resist a mild intimation of unsavory lack of accountability:

“But a CIA-run war would mean that the U.S. public would not be informed about funding or operations, as they are in a traditional war. Oversight would fall to the White House, top intelligence officials, and a few congressional committees. Embedding journalists would be out of the question.”

None of that is true, at least not necessarily. Nothing in the law requires that because the CIA runs it, the operation must be “covert” in those ways. The executive branch can use the CIA without in every matter invoking the shell of secrecy; Congress, if it wanted, could do the same. In any case, the actual problems of legal and policy legitimacy would likely be much worse than this, though not one of accountability as such. It would be, rather, that vast amounts of operations could not be conducted in secrecy – not as a practical matter. The CIA might be running not just special operations forces, but proxy forces of Afghans, for example, and drone programs, and much else besides. These activities wouldn’t be secret, they wouldn’t be beyond reporting – but attempts to conduct policy by leaks to journalists, on the one hand, and official “neither confirm nor deny,” on the other, would surely undermine its public legitimacy. If not in a second Obama term, then in some future administration: things would inevitably fall apart; the mish-mash cannot hold.

2 Responses

I bet I can predict their legal argument: “It is legal because we say so, and we have more tanks than you have, and we have the Veto. Oh yeah, and we won’t let you sue us in any court, because we are the sovereign.”

Response…
In my October presentation at the Am. Branch, ILA meeting in NY (to be printed later in the ILSA J. Int’l L.), I noted that the killing of AAA would be a lawful measure of self-defense assuming that the Admin. was correct that he had migrated from a mere propagandist to one aiding and betting armed attacks on the U.S. (some of which had failed, like the Christmas udnerwear bomber, the FEDEX etc. cargo plane boming attempts) as well as a member of a planning and ops team. I be Eric Holder will mention self-defense.

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